Blair Miller

(Daily Montanan) A federal Montana judge on Wednesday temporarily enjoined two parts of a bill dealing with extra voter registration requirements that was passed by the legislature last year, which the judge said the state did not plan on currently enforcing but still harmed the two voter groups which challenged the law.

Chief District of Montana Judge Brian Morris issued a preliminary injunction that blocks state officials from enforcing the part of House Bill 892 that implemented law saying a person could not purposefully remain registered to vote in more than one place at a time, and requiring a person to note their prior voter registration on their application to register to vote at their new address in Montana — lest they face criminal penalties.

Morris heard arguments on the request for a preliminary injunction on March 20. The Montana Public Interest Research Group and Montana Federation of Public Employees challenged the law in federal court last fall, saying the portion of it that contains the new requirements — Montana Code Annotated § 13-35-210(5) — violate the U.S. Constitution because they are too vague and broad. Another group is challenging the same provisions of HB 892 in state district court and is awaiting a judge’s decision in Gallatin County.

At the hearing in the federal case, an attorney for the two groups said the provision was a “wolf in sheep’s clothing” because double-voting, which is what the sponsor of the bill said the measure would clarify, was already illegal in Montana and under federal law before the 2023 legislative session. Elias Law Group Attorney Aria Branch said the requirements are confusing and could lead an unsuspecting person to commit a felony even if they had no intention of voting twice in the same election.

The two groups say that their objectives of registering young people and public employees to vote are being chilled because they could inadvertently cause their members to commit a felony.

The state argued the law is not harming the groups because voter registration numbers have continued to increase since the law went into effect and county clerks and prosecutors were not enforcing the criminal provisions.

The Montana Republican Party and Republican National Committee, which intervened in the case, had told Morris that he shouldn’t enjoin the law so close to Montana’s June 4 primary election because that too would confuse voters and elections administrators.

In Wednesday’s order, Morris sided with the plaintiffs on nearly every argument.

“The court determines that HB 892 has frustrated the purpose of both MontPIRG and MFPE to the extent that HB 892’s multiple registration prohibition and prior registration disclosure requirement perceptibly impair plaintiff’s ability to navigate and advise on the Montana voter registration process,” Morris wrote in finding the organizations had standing in the case.

Morris shot down the argument about changing election laws too close to an election by saying courts have upheld changes within 33 days of an election before, and noting the primary election was 47 days from when the injunction hearing occurred and 196 days from the General Election.

Morris also took into account Ravalli County Clerk and Recorder Regina Plettenberg’s testimony in the Gallatin County case, in which she said the Secretary of State’s Office had advised elections administrators that HB 892 would leave election administrators’ practices unchanged.

“The court determines that limited injunctive relief likely will not significantly impact election procedures in Montana that appear to be unchanged by HB 892,” Morris wrote.

He also said the defendants — Secretary of State Christi Jacobsen, Attorney General Austin Knudsen, and Commissioner of Political Practices Chris Gallus — and intervenors had failed to show a concrete connection between a person maintaining multiple voter registrations and the state prohibiting double voting, and that he agreed that the new requirements “tend to burden protected political activity through the imposition of felony criminal penalties.”

Morris said the two groups had shown that the new registration requirements could impact a class of “highly transient voters,” including college students, people who work temporary jobs, and other young people.

“Plaintiffs appear to face a proverbial Hobson’s choice: Attempt to conform their voter registration activities to HB 892; or cease and greatly reduce their voter registration activities for the 2024 Montana primary election and 2024 Montana general election,” Morris wrote.

He found that it did not matter that the groups chose to sue months after the law took effect because their First Amendment activity – registering new voters – could be violated by the provisions of HB 892.

But he came back to the point raised by Plettenberg in the other case that officials were not intending to enforce the criminal penalties for voters who might violate them in making his decision.

“The court finds that the public interest in preventing disputations in the electoral process will not be implicated by enjoining HB 892’s multiple registration prohibition and prior registration disclosure requirement,” he wrote. “…The court determines that limited injunctive relief likely will not significantly impact election procedures in Montana that appear to be unchanged by HB 892.”

“The Court’s ruling protects Montanans and their constitutional rights by ensuring that a simple act—registering to vote— does not turn Montana citizens into felons,” Montana Federation of Public Employees President Amanda Curtis said in a statement. “Elections in our state are safe and secure, and the Court’s ruling confirms that Montanans should not face intimidation from the government.”

The Attorney General’s Office did not respond to an email seeking comment on the order.

Richie Melby, a spokesperson for the Secretary of State’s Office, said it was the office’s understanding that election administrators would follow practices “as they’ve always done.” He also attacked the courts for the decision – the latest that has rankled Republican officials.

“It’s absurd to block a bipartisan bill, supported by state and local election officials, that simply codified the long-standing practice of canceling voter registrations of people who have moved from other states to Montana,” Melby said. “It’s ridiculous that activists cry foul when the state makes existing practice a law – one that is an important tool for election officials to maintain voter records. Courts must quit interfering with Montana elections, especially right before an election, due to lawsuits from coastal lawyers seeking partisan gain.”

The injunction issued by Morris only applies to the multiple registration prohibition and prior registration disclosure requirement, not to the remainder of the bill, which remains in effect.